Grace v. Browne, No. 81

No. 81 | 2d Cir. | Mar 2, 1898

SHIPMAN, Circuit Judge

(after stating the facts). The point in dispute was the intention with which their action was undertaken on the 80th, for the court abundantly charged that the intention of the captain was an essential element to be affirmatively proved. There was room from the mate’s testimony for the inference that the vessel left her moorings, and was at the edge of the harbor, for the purpose of getting ready to depart, but not with the intent of instantaneous sailing, and that the action which was taken was simply to put the vessel in readiness to go when the captain was ready to quit the port, and that the theory of her moving seaward with the intent of a forthwith departure was fictitious. But the question could not properly be taken from the jury. There was too much affirmative testimony on the part of the plaintiffs for a court to declare that there was no question of fact in actual controversy.

The next' question is in regard to the inadmissibility of the clearance papers without additional proof of the official character and signature of the officers who executed them. They were found, after the captain’s death, with the other ship’s documents, and consisted of six papers. The first was the ship’s manifest, with the crew list, signed by the captain, with a certificate by the British vice consul of the examination of the sailing letter, and the return of the ship’s articles, on November 29th, and with a certificate of the captain of the port, dated November 29th, that the vessel arrived in Taltal on October 25th and departed November 29th, “the clearance having been presented, executed by competent Chilian authorities.” This paper was admitted without objection. The other papers were: (1) An application by the British vice consul to the Chilian authorities on November 29th for a permit for the vessel’s departure. (2) The bill of lading, dated November 30th, and signed by the captain, and both bill and signature identified by the mate. (3) The license to sail, which consisted of the application of the shippers to the governor of the port for a sailing license; the certificate of the governor granting license after payment of charges; the certificate of the custom-house official that there are no charges; and the permit of the maritime subdelégate: of the port granting leave to weigh anchor. AU these papers were dated November 80th. (4) A certificate of the custom-house official that the vessel had paid its tax for hospital dues, dated November 30th. And (5) the bill of health, signed by the maritime subdelegate of the port on November 30th, at 11:30 a. m: All these official documents were under seal. The certificates of the notary and of the governor of the port to the signature of the notary, and the certifícale of the British vice consul to the signature of the governor upon the bill of health, were dated on December 1st, and this fact was one of the main jioints of the defense as indicating (hat the vessel was not ready to sail on November 30th. The reply to this argument was that these attestations were not necessary, but: were probably taken out of abundant caution, as the vessel was obliged to delay. The bill of lading was sufficiently identified by the testimony of the mate. The other papers which were of value were not copies, but were original documents, executed by the Chil-ian authorities, who were public agents appointed for the purpose of protection to foreign commerce, to furnish the documentary evidence that vessels are engaged in regular traffic, and that they have permission to sail, which the laws of maritime nations generally require, and which must be furnished by foreign vessels when they arrive in this country. Kev. St. § 4209. They were produced by the proper custodian from the proper place of custody, and that they were the clearance papers intended for use upon that voyage was manifest. These documents are of a public nature, which are made by persons specially appointed for that purpose, in discharge of a public duty, are entitled to confidence on that account, and their admissibility stands upon the same ground with that of official registers, iu regard to which it is said by Professor Greonleaf (1 Greenl. Ev. § 483):

“These documents, as well as all others of a public nature, are generally admissible in evidence, notwithstanding tlieir authenticity is not confirmed by those usual and ordinary tests of truth, the obligation of an oath and the power of cross-examining the persons on whose authority the truth of the documents depends. The extraordinary degree of confidence, it has been remarked, which is reposed in such documents, is founded principally upon the circumstance that they have been- made by authorized and accredited agents, appointed for the purpose; but partly, also, on the publicity of tlieir subject-matter. Where the particular facts are inquired into, and recorded for the benefit of the public, those who are empowered 1o act in making such investigations and memorials are in fact the agents of all individuals who compose the state; and every member of the community may be supposed to be privy to the investigation. On the ground, therefore, of the credit due to agents so empowered, and of the public nature of the facts themselves, such documents are entitled to an extraordinary degree of confidence; and it is not necessary that they should be confirmed and sanctioned by the ordinary tests of truth. Besides this, it would always he difficult, and often impossible, to prove fads of a public nature by means of actual witnesses upon oath.”

It is true that they are foreign official documents, but, because the laws of maritime countries universally require the issuance of that general class of documents, and the statutes of this country require them to be taken by the master of a foreign vessel if he is destined for a port in this country, and compel their production to the collector of the port where he makes entry of his vessel, they stand, in regard to admissibility, upon the same footing with other original official documents. 2 Tayl. Ev. §§ 1481-1434. The judgment of the circuit court is affirmed, with costs of this court.